An Open Letter to My Prime Minister: CETA and other ISDS containing treaties

Dear Right Honourable Mr. Trudeau,

I am dismayed by the CBC News item last Thursday (2016, October 13) titled, "Justin Trudeau says CETA will test European Union's ‘usefulness.’”  As I contemplate this bit of news through the days following, I feel an increasing sense of distress that Canada's new government is prepared to follow the path set by our previous government in betraying Canada's sovereignty to Investor-State Dispute Settlement (ISDS) provisions in so-called trade agreements. This most certainly is not "Real Change" nor is it anything like ”Sunny Ways.”

In chiding European Union nations about hesitating to ratify the Canada-European Union Comprehensive Economic and Trade Agreement (CETA) you reveal your intention that Canada should ratify this so-called free trade (but in reality, international corporate protection) agreement with its sovereignty deleting ISDS provision. This suggests to me that you also intend that Canada should ratify the Trans-Pacific Partnership (TPP) and continue to participate in Trans-Atlantic Trade and Investment Partnership (TTIP), and the Trade in Services Agreement (TiSA) secret negotiations, all of which include provisions for ISDS by which international corporations can turn to the International Centre for Settlement of Investor Disputes (ICSID) and sue Canada in SECRET TRIALS by tribunal outside of any national judiciary to overturn new law enacted out of our sovereign right to govern ourselves.

I write to call on our new government to reject these legacies of former Prime Minister, Steven Harper. They will block the “Real Change" for which Canadians voted. Canadians can do better than these dangerous, costly, and outdated bad deals that will kill jobs, undermine environmental protections, restrict free expression online, and, most seriously, erode our democratic rights, permitting international corporations to attack our sovereign right to govern ourselves. I was dismayed when Minister Freeland signed TPP on February 4th without the free and open consultation with Canadians you promised. On the other hand, although following the signing, I am thankful for the efforts of the House of Commons Standing Committee on International Trade to hear Canadians' thoughts; they have my submission.
During last Fall’s election, at the announcement of successfully completed TPP negotiations, no one within the Liberal Party of Canada raised Canada’s participation in this agreement with its sovereignty attacking ISDS provision as the fundamental issue it should have been. I really do not understand why our sovereignty did not take front and centre as THE issue through the election campaign. I asked my local candidates on more than one occasion to address the issue and subsequently also asked my new MP (to whom I could not give my vote in spite of her many other desirable and attractive qualities, as she would not address this critical issue), now one of your Cabinet Ministers. After all, if international corporations can sue Canada in SECRET when your new government takes action to correct the damage inflicted by the previous government, we will find ourselves impotent to act. Nobody has ever responded to my requests. I have no problem with free trade, as such and recognize the economic principle of comparative advantage; I do see that betraying Canada's sovereignty as entirely another matter.
Our previous government negotiated in secret, then signed CETA and secretly negotiated TPP which Minister Freeland has now signed. Both now await ratification. It had also signed other so-called free trade agreements, most notoriously they secretly negotiated, then signed, and eventually ratified the Canada-China Foreign Investment Promotion and Protection Agreement (FIPPA) which goes far beyond simply providing for freer trade but, in effect, diminishes Canada to a resource colony of the Communist dictatorship in Beijing for the next thirty years. With the inclusion of the ISDS provision, Chinese firms (which are merely arms of the Chinese Communist dictatorship) with investments in Canadian business now have the right to sue Canadian federal, provincial, and municipal governments in SECRET TRIALS if new environmental, labour, health and safety, business practice, etc. law impinges on their investment. That is to say, Canada now has to clear such new laws, regulations, and court judgments with Beijing in order to bring them into effect.
My understanding of the development process to produce these treaties and their ISDS provision content is that:
  • Negotiations towards these so-called free trade treaties are conducted in secret by government delegated negotiators, except that the only people outside of government who are granted access to Canada’s negotiators are representatives of international corporations, given equal standing at the negotiation table with nations and able to dictate provisions within the agreements, while the Canadian public remains completely uninformed of progress through these negotiations and that:
  1. wholly domestic Canadian businesses with an interest in how international trade may affect their own local business operations,
  2. organizations concerned about environmental issues and how international trade may impact the Canadian and worldwide environment,
  3. labour organizations with concerns about how international trade may affect working Canadians,
  4. Canadian agricultural organizations with concerns about Canadians’ capacity to feed ourselves while also trading internationally,
  5. organizations attentive to health and safety issues and concerned with the effect of international trade on those issues, and
  6. others with interest in the effect of international trade on Canadian society,
           all are prohibited the same access to Canada’s government trade negotiators;
  • Canada submitting to ICSID and its ISDS secret trials constitutes serious suborning of our sovereign right to govern ourselves;
  • ISDS proceedings, in effect, raise international corporations from being subjects of nations to non-territorial kingdoms, equal with, or even masters of, nations;
  • ISDS proceedings are conducted as SECRET TRIALS, utter anathema to a free and democratic society, never open and public;
  • Decisions by ICSID tribunals in ISDS suits cannot be appealed to a higher court;
  • ISDS suits occur in one direction only, corporations can sue nations but nations cannot sue corporations; and
  • ICSID tribunals made up of corporate lawyers (one selected by the suing corporation, one by the defending nation, and one so-called neutral, but all drawn from corporate legal practice and vested in corporate interests) can never actually be fair and impartial judges of ISDS suits.
As I understand it, the evil of ISDS lies in its capacity to defeat the sovereign right of nations to govern themselves through secret trials without recourse to appealAlthough the ICSID with its ISDS has existed for quite some time, I, along with most of the Canadian public, was not aware of this danger to Canada's sovereignty. This may, in part, result from international corporations only recently taking to exploiting ISDS to their advantage, challenging national governments more frequently than through previous decades. I did not recognize the danger back when NAFTA was negotiated, signed, and ratified.  Recently, I learned that, as a consequence of ISDS in NAFTA, Canada is already the developed nation most frequently attacked with ICSID suits, with one immediately a recent case in point, an ISDS judgment against the province of Ontario.  Only with publicity of controversies at the time of the Canada-China FIPPA announcement and eventual ratification did I came to understand the threat Canada faces. ISDS forms part of very many modern so-called free trade (but in reality, international corporate protection) agreements and through that provision international corporations now seek to detach themselves as subjects of nations and hold themselves as equals with, or masters of, nations and attack nations' sovereign right to democratically govern themselves.  This establishes a dangerous trend by which Capitalism degenerates toward Capital Feudalism:
  • Capital replaces land as the feu;
  • International banking replaces the Church as the outside power;
  • Non-territorial international corporations replace kingdoms as the fundamental holders of the feu;
  • Corporate CEOs replace kings as the authorities by which the feu gets distributed and to whom loyal attachment must return;
  • Major corporate internal divisions and subsidiaries replace baronies, earldoms, dukedoms, counties, etc. as subordinate holders of the feu;
  • Corporate vice presidents, very senior managers, and subsidiary CEOs replace the various Lords of the Realm;
  • Corporate managers and highly skilled technical professionals replace knights;
  • Contractors replace the freeman peasantry; and
  • Ordinary common working people are reduced to the new serfs;
  • All while the role of sovereign nations and democratic decision making diminishes into insignificance.
This trend must not be permitted as it reduces participating nations, Canada included, to resource and labour colonies of those corporations. For suborning Canada’s sovereignty to international corporations through ICSID, former Prime Minister Harper and those of his ministers involved in these negotiations should be called to answer to the charge of treason.
As a positive suggestion, may I offer that, instead of ISDS, Canadian operations of international corporations that find themselves at issue with our governments at any level should bring the matter to an open and public Canadian court within the Canadian judicial system for decision under Canadian law in the same way as wholly domestic Canadian corporations and Canadian citizens must do. If an issue exceeds the competence of Canadian courts, an international corporation should publicly request its home nation government (by home nation, I do not mean that nation within which an international corporation locates its corporate head office, I mean that nation in which the plurality of the corporation's equity capital ownership resides) to pursue the matter in an open and public international court on a sovereign nation versus sovereign nation basis that clearly holds international corporations as subjects of sovereign nations and not as equals with, nor as masters of, sovereign nations.
Please do the right thing and refuse to ratify CETA and TPP as each comes up for ratification unless the sovereignty-destroying ISDS provision gets stripped from these agreements and withdraw Canada from the secret TTIP and TiSA negotiations as long as they remain secret (after all you did promise to be open with Canadians) and also contain the sovereignty-deleting ISDS provision.
Please share your thoughts on this vitally fundamental issue in Parliament and publicly with voters all across Canada.
Respectfully submitted.